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Interview on land tenure in Haiti

Originally posted to Architecture for Humanity’s website (see here). This interview was conducted over skype by Karl Johnson at Headquarters shortly after I left Haiti over the summer of 2012 (I have since returned). This version contains some minor edits here and there with respect to the original.

Land title and land tenure. Believe it or not, it’s this battle that’s dictating the pace of reconstruction in Haiti–and the issue is hairy. I mean, technical. Architecture for Humanity Design Fellow Frederique “Rickie” Siegel fell into a working group last year bent on addressing the bottleneck on permanent development throughout the country following (but not due to) the 2010 earthquake. Headquarters had an extended conversation with Rickie that, however tempted we are to edit down for running “a bit long,” remains unabridged–with hopes it provides a comprehensive explanation of what it’s going to take to turn the issues of “who owns what where” in Haiti into an accessible system from which permanent construction on “untenable” property can be legally defended. If you can get through it, you’ll be eternally rewarded. This interview took place this past September.

HQ: You’re in London now, what’s new?

RS: I had been enrolled in a Master’s program before coming to Haiti. Coming to Haiti was part of the Master’s requirement, well, getting a one-year internship, where I was supposed to be fulfilling a lot of requirements, writing a lot of papers. The internship was supposed to be part-time, but the school was pretty flexible about it, and they let me postpone the research until after I finished my placement. I came back to finish my coursework.

HQ: I see – and your work with the Property Law Working Group is part of your research. So tell us about the Group.

RS: That’s something I worked on for Architecture for Humanity. We had burgeoning project that was a large-scale new development outside Port-au-Prince, that we were partnering with several organizations on to execute. It ended up getting cancelled. One of the things that came up in our work was the murkiness of land title, and who owned the land that we were trying to develop, and how would that matter if it’s suddenly declared a “public utility” by the government, which is the Haitian version of eminent domain.

At first it was about figuring out what it meant – does the land still belong to the people who used to own it? There were a lot of squatters – who has a stronger position in a situation like that? Is the law on the side of the landowners or the squatters? So that was a huge problem. We decided to launch a working group with experts in property law to examine these questions and better understand the legal frameworks in which we were working. That’s how it started; at first a very small group of lawyers, the Institute for Liberty and Democracy founded in Lima by [Hernando] de Soto – people who had previously worked on land tenure issues in Haiti. We met every month to six weeks. I was asked to coordinate working with this group and follow it where it might lead. My role was really just to organize the meeting, get people in the same room together, take notes, edit minutes, that kind of thing. And it took a life of its own. Even as the original project fell to the side, the Property Law Working Group became instrumental….

It was a group effort, and the decision to start focusing on writing a manual was a group decision. Everyone sat down and thought: first of all, what are various organizations doing in land tenure property law right now? From the beginning, we sought to involve CIAT (Comité Inter-Ministériel d’Aménagement de Territoire), the government’s land tenure agency, which was working on long term solutions regarding setting up a cadastre for the country, and evaluating the methodologies for doing that. They hadn’t started that, they were at a study phase. Their view was very long term. Meanwhile, we were also sitting at the table with people who worked for organizations who developed housing, very short term goals–to figure out a way to build housing and schools. What we concluded was: at this point, we needed a clear understanding of what the law is that governs land ownership, and of the step by step procedures that were involved, so we could put everyone on the same footing to at least enter into these procedures. It was essential to understand what the steps are that you have to follow to be a legal, complete land owner – even to be able to differentiate between who is and who isn’t, because many people claim to have title, and you need to be able to analyze the documents to verify it. So we set out to document this in the manual; what IS the complete set of documents, and steps that you have to follow to become a land owner? We hired a property law professor from Quisqueya University, who is also a “notaire” which is basically a notary public.

What Haitian notaries do is very similar to what French notaries do. Unlike American notaries, they have to be lawyers first, and then on top of that go through a 2 or 3 year internship at a notary’s office, and then they actually have to be appointed by the president.

HQ: That probably works better for smaller countries.

RS: I don’t think that’s the case in France, but in Haiti you have to be. And there’s a restricted number per municipality, as well as the jurisdiction of their operation… I can’t remember precisely, but there’s a geographic restriction. Let’s say for each municipality, depending on the population, there are only 3, 5, 7 notaries, and they’re presidentially appointed, and a new one can’t be appointed until someone dies. And the new appointee is usually recommended by existing notaries, often handed down from father to son or daughter. It’s a very closed profession. You find that they all know each other, they’ve all been through this together; it’s an interesting field. The person we worked with to write this manual is one of these notaries, and we also worked close with some lawyers, especially a Haitian property law specialist called Chantal Hudicourt-Ewald. She’s very well-respected in Haiti – particularly in the legal profession.

Basically, the way that property transactions work: in order to defend future claims against possible conflict, you have to have at least a notary and possibly a lawyer to help you go through it – they’re central to this process. What this means is most people can’t afford this process, as a result of which a huge proportion of transactions are done informally, maybe involving some elements of the legal procedure, but oftentimes not at all. The procedure is complicated, expensive, guarded by a few highly trained individuals… it’s a fortress. Among the general population, and even among international actors, here’s a lack of knowledge of what this procedure is, and why it’s important.

So this was our starting point. It was part of a two-sided strategy: the first side being to get everyone to understand the very basics of property law, and disseminate this information. If anyone was developing land, they’d have this information at their fingertips. The second was to strengthen the basis of this property law group itself. It came out of nothing, with no recognition, and it needed to prove that it could accomplish something, prove itself useful, and gain acceptance and traction. So by taking on something as practically indisputable as what the current law says, we could get consensus on something solid, even though most people don’t know what it is. Then we were hoping to move forward with other projects, and gain consensus on issues where there was none. Murky issues like: what do you do with land that’s been traded informally? Or what’s the government’s role in reconstruction? Or how can you identify or clarify ownership on a piece of property where ownership is unclear – what are the steps to go through to unsnarl that mess? So those things are the crux at the issue, and on the forefront of the minds of everyone who’s into construction right now. We couldn’t get into those things until we had the trust and collaboration built. And that’s where we’ve proved successful here: people really are on board.

HQ: A point of clarification–could you explain what a cadastre is?

RS: I’m not an expert, but the way I understand it is: land ownership rests on three pieces of information: the identity of the owner, the location, size and details of the property, and the connection between the two – the proof that the owner owns the property. A cadastre gathers that information into one map-based database and it is a legal tool.

It’s a lot more complicated than it sounds. In the US you take it for granted that you can go into City Hall and look up any piece of land in the city on a computerized map. You click on the parcel and out pops a lot of information. A less ideal situation is where you have a massive amount of land where you don’t know where the property boundaries are or who owns what, where many people have no identification papers, and where the person to land connection papers aren’t in order. People who’ve been living somewhere for many years may have no proof of owning that property – their grandparents or great great grandparents may have had title to it but have never confirmed properly passing it down. That connection has been lost – it’s incredibly hard to PROVE who owns what any more. Where do you start – there are competing claims of ownership, and whose claim is more legitimate? Somebody who’s been living on a parcel for 50 years, has built a house on it, had their children there, or a person who owns a piece of paper claiming those folks are squatters? That’s extremely common in Port-au-Prince, and a situation we faced in Villa Rosa. But at this point those folks have lived there 35 years, and who’s going to kick them off?

HQ: So the long-term goal is to formalize property?

RS. You mean is that what we should be aiming for?

HQ: …Is it?

RS: (laughs) See that’s also a question I’ve been grappling with. Since I got home I’ve been doing a lot of research, and my masters thesis is actually about land tenure, around this question. Is the goal to provide people with title and to create a cadastre? And if not, then what IS the goal? I had to go back to the beginning: what are the desired outcomes? To me they are for people to have secure tenure, so they’re not kicked out of their home, and for people to also have the basis to improve their lives, perhaps for the municipality to be able to generate property taxes…. What else? There’s this famous book, “The Mystery of Capital,” by Hernando de Soto, which claims that if you give people property title, they unlock capital by being able to use their house as collateral to obtain loans. So you could add that to the list of potential goals.

So looking at it a little more closely, you don’t need to give people title for them to have secure tenure – not necessarily. UN Habitat talks in their work about a spectrum of forms of land tenure, and a lot of academics recognize this too: from being a squatter with no rights and the daily fear of being kicked off your land to being a full owner with title. But as you can see in Haiti, being an owner with title does not protect you from being kicked off your land. There are various threats to ownership.

HQ: Such as eminent domain?

RS: A good example. The government doesn’t always follow its own rules, it could take your property and not even compensate you. That’s what happened in the North Pole – they haven’t even gone through the procedure of eminent domain, they just declared it, and now the owners have lost control of their land without compensation. Another example is squatters. Haitian police do not protect private property from squatters – you have to protect it yourself, which is why there are so many walls. And private security; sometimes people will hire somebody to live on their land…

HQ: Dogs…

RS: There are all kinds of ways people find to protect their land but they all involve private expenditure. These examples prove that just having title doesn’t guarantee tenure security. But in contrast, without having title you could still have great tenure security. The people in Villa Rosa who’ve lived there for 35 years don’t have a piece of paper saying they’re allowed to, but they’ve built houses, they’ve invested, they’ve improved their situation, they’ve expanded their houses… I’ve seen five-story buildings in Villa Rosa, built by people with absolutely no title. You don’t invest in your property unless you feel confident that your tenure is secure. And the government has made no moves to kick them off – and in fact they’d be pretty shortsighted to do so. Squatting is a dominant situation in Haiti, and action against them would lead to a terrible mess of protests, riots. It would never work – it’s infeasible to move these people off the land unless they provide really good compensation, which they can’t afford to do.

So looking down our list of desired outcomes (remember they were tenure security, revenue generation for the government, the ability to use the property as collateral to obtain a loan) – let’s take taxation. You can tax people without property title: just go around, survey the property and say “okay you pay taxes now.” That can add to people’s tenure security, having a receipt saying they’ve been paying property taxes on it for 30 years. Actually, on UN Habitat’s continuum of the forms of land tenure; paying taxes is considered a form of proof that reinforces your tenure security.

And some municipalities already tax people that live on land without title. At least in some area of Port-au-Prince they do.

HQ: And that’s not something maybe the country can standardize?

RS: At this point I think that might be the best option. A potential outcome of all of the surveys and mapping that the NGOs have done, identifying who lives where, could be to share those records with the municipality so that they have a basis for being able to raise taxes… not necessarily high taxes, it has to be proportional to the value of the property, which is very low. But then all of a sudden the municipality would have a financial basis for providing infrastructure, and the people living in those places have a voice, they have a stake ensuring their municipality is providing services. If they pay taxes then they have a reason to hold their politicians accountable – what better reason is there than being angry about how your politicians spend your money? So you have an engaged citizenry – to me, one of the key things that Haiti lacks. People don’t hold their politicians accountable. The expression in Haitian Creole, si Dye vle, translated “If God is willing…” “I’ll see you tomorrow, si Dye vle,” it’s used all the time.

HQ: Uh huh. My Creole lessons are all coming back to me…. I’m seeing parallels between these discoveries that the Working Group has been, and the mapping work that we’ve conducted in different communes.

RS: Absolutely. It’s all connected. The cadastre idea requires mapping as its basis…. Architecture for Humanity should really be called Real Estate Developers for Humanity! I had this conversation with Eric [Cesal, Haiti Regional Program Manager] once, where he said, you know we do design, but we see things all the way through to construction, we also have to deal with all the stuff that comes before you start building: figuring out who owns the land, whether the development will actually be worth the money… we’ve had occasion to reconsider projects because of that, it’s a really important part of the process. Most architects are hired by real estate developers, in this case Architecture for Humanity is everything wrapped into one.

I’m not an architect, but I see this work as being very much part and parcel of what we do no only on the planning side, but also on the architecture side. Particularly when you look at places like Villa Rosa; these are all neighborhoods dominated by informality – the owners are absent or there’s no proof of ownership. It’s useful to be able to understand these things, particularly when you’re trying to think about ways to attract investment or incentivize the construction of housing. You go back to that idea of “how do you mobilize capital if not by having people using their homes as collateral?” Sorry, I’m going off on these huge tangents!

HQ: Not at all! Let’s look at the land tenure issue again real quick. Is this a familiar problem in other places of the world?

RS: Oh absolutely. This is a problem that is affecting developing countries all over the world. I read an article about Phnom Penh, Cambodia, which is a stable economy at this point, and questions are coming up with squatters there. The article was talking about how the government is wondering how to protect them without giving them title. This issue, in different forms, is pervasive around the world. Brazil, which has been a leader in urban planning issues, is also really strong on land tenure issues. They’ll go into neighborhoods and do what they call neighborhood upgrading. The government will go into favelas and work with the community and help to create new roads, build sewage systems, etc. – what we’re talking about in Haiti – but they’re also awarding title to people who can prove they’ve been living there for a certain number of years. Studies coming out of Peru have been interesting – that country has been one of the most energetic about de Soto’s vision of clear title for everyone. (That’s where his organization is based.) Studies a few years on are showing that only a fraction of people that have received title through government programs actually were able to access capital. There were a whole series of impediments to access which have driven people back to the drawing board – title’s a costly thing to go through for such meager results.

HQ: When it comes to finding solutions, I imagine they’ll all have to be nationally specific.

RS: Yep. There are differences in the legal system, in how the country operates. Brazil has a bigger budget and a stronger economy, so their concerns are very different from the concerns of the Haitian government.

HQ: And if a government is reforming, it’s like designing to a moving target…

RS: Yeah, although you’d be surprised. The Haitian government on one hand reforms and on the other hand stays the same, in a frustrating “can’t change ‘em gotta love ‘em” kind of way. You’ll find that they’ll start a new agency, and the many of the people staffing the previous agency that didn’t work are now moved over to the new agency. You do get new people coming in from the private sector, especially at the high levels in the executive branch thanks to Martelly and Lamothe [the president and the prime minister]. But many of the mid-level people stay the same, so even if the format and policies are restructured above them, they often remain averse to risk and change.

In another example of things moving slowly, as I mentioned earlier CIAT is working very closely with the IDB (Inter-American Development Bank) and a delegation from France, experts in the cadastre system, because of how similar the French and Haitian legal systems are, and looking to see how France has modernized their system. However, the underlying reality is that Haiti’s system really resembles the French system from the 18th Century, more than the French system today, and desperately needs to be modernized. It’s not a Common Law system like in the United States where things evolve based on circumstance and landmark court cases, it’s a constitutional law system – the laws need to be re-written or updated, which means the parliament needs to be involved. It’s a slow and onerous process. I mean, you’re seeing things changing in Haiti, but it’s not always percolating through all branches and levels of the government.

HQ: You attached a picture to this email you sent me of you working at the Rebuilding Center in front of…what looks like a bunch of tape on a wall.

RS: Yep.

HQ: What…what is that?

RS: A diagram… of the Government of Haiti as it relates to urban planning, land tenure… anything involving land, not necessarily environment, but built environment, as of summer 2012. So that includes the Ministries of Public Works, of Justice, of Planning… basically the top row are all ministries. Within each ministry are department that work on different issues. So I was trying to figure out what each department did, and how much overlap actually is there between these Ministries that rarely coordinate with each other and have very little idea what each other are doing, even as their mandates are so similar.

HQ: If you needed something accomplished and one department was taking too long, you had alternatives?

RS: Exactly, and that happens sometimes.

HQ: Did you make any discoveries as you were mapping this out?

RS: A major one, yeah. I thought CIAT was the national agency of Haiti with the remit of urban planning and land tenure, but I quickly discovered that there is not only a Ministry of Planning, but also a department of urban planning within the Ministry of Public Works, and several others departments and ministries that deal with these issues! Basically, CIAT was founded as an inter-ministerial committee. Their role was supposed to foster communication between 6 different ministries. Instead of performing this necessary but rather unsexy function, they started their own programs, partnering with IDB, starting this cadastre project. However, they completely ignored the fact that there’s already an organization in the Haitian government responsible for starting a cadastre. Not an effective one, but it exists, and it’s staffed, and that staff probably gets paid… but this is an example of how, if something’s not working, they’ll often just start a whole new agency to deal with the problem, instead of reforming the original entity (or entities) responsible.

The Working Group Document is going through final revisions now–expect the approved product online soon.

To end on a more positive note, I just want to emphasize that though things are moving slowly, despite the occasional duplication of efforts, we are seeing some progress in this area, and there is certainly more to come. The How-to Guide to Legal Land Transactions in Haiti, which is the first product of the working group, is going to be published very soon and I will include a link here on this blog.